julius tukumbuke sanga vs clement tukumbuke sanga another 2015 tzhc 2253 10 august 2015

IN THE HIGH COURT OF TANZANIA AT MBEYA MISCELLANEOUS LAND APPLICATION NO. 4 OF 2015 (Originating from Misc. Land Appeal No. 11 o f 2014) JULIUS TUKUMBUKE SA N G A ...................................... APPLICANT VERSUS 1. CLEMENT TUKUMBUKE SANGAl 2. OMARY BALI ADI MAPESA j ... RESPO JUDGMENT Date o f last Order: 14/ 05/2015 Date o f Judgment: 10/08/2015 A.F. NGWALA, J. On 13th January, 2013 it was decided by the ward tribunal of Maanga in Mbeya District that the appellant in this appeal, one Clement T. Sanga who was then the defendant should return a sum of Tshs.25,000,000/= to the purchaser of the two houses. That Ward Tribunal also ordered that the said two houses should revert to the members of the family, and further that the sale process should start afresh by following all the required legal procedures by involving all persons or members of the family. i For the sake of clarity and avoidance of doubt I reproduce that decision which was endorsed by all the seven members of the tribunal in verbatim as follows “UAMUZI WA BARAZA” “Nyumba hizo mbili zirudi mikononi mwa fam ilia, taratibu za kuuza zianze upya na kufuata taratibu za kisheria na kushirikiana wote kwa pamoja. Mdaiwa unaamriwa kumrudishia mnunuzi fed ha zake zote Tshs. 25,000,000 / = tu. Pia unaamriwa kurudisha gharama ya baraza alizotoa mdai Tshs.40,000/= urudishe leo hii. hata hivyo Mdai na Mdaiwa mnapewa siku thelathini kukata Rufaa M ahakam a ya Ardhi kama ham jaridhika na uamuzi huu.” Dissatisfied with the above decision the respondent appealed to the District Land and Housing Tribunal of Mbeya. The said District Tribunal held that the suit house having been sold at Tshs. 25,000,000/ = , it means the value of the suit premises was far beyond Tshs.3,000,000/= which is the pecuniary limit of the Ward Tribunal as per the provisions of Section 15 of the Land Disputes Courts Act No. 2/2002. The appellate District Land Tribunal found that the challenge against the sale cannot be made in the forum of these tribunals, but the court which had appointed the seller as the Administrator of the Estate of the deceased. The Chairperson further held that the appellate tribunal cannot allow the suit to be refiled in so far as the sale was declared by the High Court to be done by the lawful Administrator. There is no Appeal to the Court of Appeal of Tanzania, such decision is binding to the parties, and the appellant (the Respondent in that appeal) had only to claim his share. At the hearing of this Appeal, the appellant who was unrepresented, insisted that the evidence he had adduced in the District Land and Housing Tribunal was abundant and sufficient to give a decision in his favour and not otherwise. He submitted further that the Respondent had no right to sell the house because the members of the clan had not decided on how to distribute the properties of their deceased father. He added that, after all this their uncle from Ukinga in Makete came and told the Ward Tribunal that he was the care taker of the Clan and overseer of properties of the Clan or their family. 3 Mr. Mbise the learned counsel for the Respondent contended in reply that the Judgment of the District Land and Housing Tribunal was correct. It was in accordance with the law and the Ward Tribunal had no jurisdiction to determine the matter as per Section 15 of the Land Dispute Court’s Act. More so, Mr. Mbise submitted that the basis for the decision was that the Ward Tribunal did not have pecuniary jurisdiction to entertain the case, non - joinder of the buyer as necessary party in the case and that the case was res- judicata as it was already heard by Mwanjelwa Primary Court in Probate Cause No. 47 of 2007, Mbeya District Court Probate Appeal No. 25 of 2010 and High Court Misc. Probate and Administration Appeal No. 2 of 2011. Mr. Mbise clarified further that as the decision of Mwanjelwa Primary Court has never been reversed. It is the Respondent, one Clement Tukumbuke Sanga the Administrator of the Estate of their deceased father who sold Houses Nos. 158 and 158 (b) the houses as one and the same Plot, who had done the distribution of the shares fairly, for that reason he prayed the appeal to be dismissed with costs. In rejoinder, the Appellant’s arguments were on the price which was not done by the clan. The Appellant argued that if it was done by the clan there would have been no problem. He added in rejoinder that he has never filed a case before Hon. Mwanjesi, J. For this reason he insisted that the appeal should be allowed because if a person sells a family house he must involve all the members of the family. Upon perusing the evidence on record and hearing the parties, it is quite clear that Houses Nos. 158 and 158 (b) situated on the same Plot were sold by Respondent. The Respondent did so as the duly appointed Administrator of the Estate of the Late Tukumbuke Sanga. In an Appeal before the High Court of Tanzania at Mbeya, involving the same parties, Misc. Probate Administration Appeal No. 2 of 2011, between Clement Tukumbuke and Julius Tukumbuke his Lordship, Mwangesi J. held on 11th July, 2012, that, “it was improper for the learned Resident Magistrate to nullify the sale of the house which had been done by the lawful administrator”. It is in the same vein that I am inclined to agree with the submissions by Mr. Mbise that the learned Chairperson, correctly found that the instituted case before the tribunal was a nullity and that those tribunal could not challenge the decision of the courts with jurisdiction to entertain probate cases. It must be understood that the proper forum and or the court which has power or jurisdiction to challenge the appointment of an Administrator of the Estate of the deceased by the Primary Court has been provided under fifth schedule of the Magistrate Court Act, Cap. 11 R. E. 2002 which provides as follows “2. A Primary Court upon which jurisdiction in the administration o f the deceased estate has been conferred way:- (a ) ...............N/A (b ) ...............N/A (c) Revoke any appointment o f an administrator fo r good and sufficient cause and require the surrender o f any document evidencing his appointment”. In view of that provision and the decision of Mwangesi, J in the said Probate Appeal Supra; the Respondent’s appointment as the Administrator of the Estate of the Late Tukumbuke Sanga is still valid. More so this court has no power whatsoever to interfere with the decision of a fellow judge of the same concurrent jurisdiction. It is in that regard that the findings of his lordship Mwangesi, J. that the sale of the House Nos. 158 and 158 (b) by therespondent were and are stillvalid and legally recognized by thishonourablecourt. 6 In this regard, I wish to refer the parties and all others to the wisdom of his Lordship Rutakangwa, J. (as he then was) in the case of Sekunda Mbwambo versus Rose Ramadhani [2004] TLR 439 where held that:- “A n adm inistrator o f an estate o f a deceased person is not supposed to collect and monopolize the deceased’s properties and use them as his own and or dissipate them as he wishes, but he has the unenviable heavy responsibility, which he has to discharge on behalf o f the deceased of distributing the estate to beneficiaries im partially As the Respondents enjoys the trust and confidence of the majority of the beneficiaries or heirs of the deceased persons as evidenced in the records, it is therefore prudent for this court as held by this court in probate 2/2011 by Mwangesi, J that the sale was done by the lawful and faithful administrator. As long as the sale was blessed by this honourable court to be done by the said lawful administrator, in the premises I would advice the appellant to claim his entitled share. For the foregoing reason this appeal has no merit. Accordingly it is dismissed. Given the nature of the case, and the relationship of the parties in this appeal who are blood brothers, I order that each party shall bear his own costs. A.F. NGWALA JUDGE 10/08/2015 J 8 Date: 10/ 08/2015 Coram: A. F. Ngwala, J. Appellant: Present For Appellant: Unpresented Respondent: Present For Respondent: Ms. Lucy Kessy (Advocate) Ms. Lucy Kessy (Advocate): I hold the brief of Mr. Mbise Advocate for the Respondent. The matter is coming for Judgment. Court: Judgment delivered in court in the presence of the parts. Court: Right of Appeal to the Court of Appeal explained. 9